Defamation
Summary
Definition
Essentials of defamation
; Words must be defamatory
; Reference to the claimant
; Publication
Defences
; Truth and Public Benefit
; Fair Comments
; Privilege
; Mistake
; Rixa and Jest
Remedies
; Damages
; Interdict
Definition
A defamatory statement is one which injures the reputation of another by exposing him to hatred,
contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of
society: Sim v Stretch [1936] per Lord Atkin.
Defamation is the publication of a statement, which tends to lower a person in the estimation of
right thinking members of society generally; or which tends to make them shun or avoid that
person [Winfield].
Firstly, defamation is essentially an attack on reputation.
Secondly, defamation need not impute moral turpitude [Berkoff v. Burchill & Another 1996]
where in the course of a film review, the defendant said of the plaintiff that was ‘hideously ugly’.
It was held that these words were capable of being defamatory per Neill LJ.
Finally whether a statement is defamatory or otherwise must be considered as a whole:
Charleston & Another v. News Group Newspapers Ltd and Another 1995, the House of Lords
held that those who read only the headlines in newspapers and do not go on to read the body of
the article did not represent right-thinking members of society.
Defamation may be by words, either spoken or intended to be read, or by signs or visible
representation. Anyone who makes or publishes any imputation concerning any person, knowing
or having reason to believe that such imputation will harm the reputation of such person is said to
have defame that person.
Article 10 of European Convention of Human Rights provides a general right to freedom of
expression. However, Article 10 [2] states that one of the legitimate grounds for limiting an
individual’s right to freedom of expression is in order to protect the reputation of others.
What Has To Be Proved
The claimant must prove:
(1) that the statement was defamatory,
(2) that it referred to him and
(3) that it was published
The onus will then shift to the defendant to prove any of the following defences:
1. truth (or justification),
2. fair comment on a matter of public interest, or
3. it was made on a privileged occasion or
4. unintentional defamation or
5. Rixa and Jest
The following are examples of statements which are defamatory
• Where there is an allegation that the claimant has committed a criminal offence;
• Where there is an imputation that the claimant is suffering from a contagious disease, such as
venereal disease, leprosy, plague and, arguably, HIV/AIDS;
• Where there is an imputation that a woman has committed adultery or otherwise behaved in an
'unchaste' fashion (Section 1 of Slander of Women Act 1891); or
• Where there is an imputation that the claimant is unfit to carry on his trade, profession or
calling (Section 2 of the Defamation Act 1952).
(3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.
1) Words must be defamatory
The statement must be defamatory. According to Lord Atkin, the statement must tend to lower
the claimant in the estimation of right-thinking members of society generally, and in particular
cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem (Sim v
Stretch [1936].
Mere abuse
Vulgar abuse is not defamatory. Mansfield CJ stated "For mere general abuse spoken no action
lies" (Thorley v Kerry (1812) and also Pollock CB and Wilde B in Parkins v Scott (1862).
Winfield & Jolowicz (p406) states that spoken words which are prima facie defamatory are not
actionable if it is clear that they were uttered merely as general vituperation and were so
understood by those who heard them. Further, the same applies to words spoken in jest
(Donoghue v Hayes (1831).
Innuendo
Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which
has a defamatory meaning. Such a statement may be actionable. The hidden meaning must be:
 one that could be understood from the words themselves by people who knew the
claimant;
Lewis v Daily Telegraph [1964]
The dispute centred on the headline “Fraud Squad Probe City Firm” and the plaintiffs argued that
this phrase carried the defamatory meaning that the firm in question was actually guilty of fraud
[or were suspected of it], in addition to the obvious meaning that an investigation was in
progress. The House of Lords held that the alleged imputation of guilt was not an ordinary
meaning and would require the support of extrinsic evidence which the plaintiff could not
produce. The distinction is important as the “false” innuendo does not have to be supported by
special pleading
 must be specifically pleaded by the claimant
Cassidy v. Daily Mirror Newspapers Ltd 1929
The defendant newspaper was liable for publishing a statement which was innocent in its
apparent meaning and which was held to be defamatory of a person they did not know to exist.
Under a photograph of the plaintiff’s husband and a woman was the caption, “Mr. M Corrigan,
the racehorse owner and Miss X, whose engagement has been announced”. The plaintiff
successfully alleged that people who knew her could assume incorrectly that she and her husband
were not legally married. Russell LJ stated, “Liability for libel does not depend on the intention
of the defamer, but on the fact of defamation”.
There is a distinction drawn between the false innuendo and the true innuendo.
False Innuendo: An alternative meaning, which the ordinary, reasonable person who can read
between the lines would infer from the words, is known as the false innuendo meaning. It is
where the plaintiff pleads that the words in their natural and ordinary meaning have a particular
meaning which can be discovered without the need for additional evidence [Lewis v. Daily
Telegraph 1964].
True Innuendo: Arises when words that appear to be innocent to some people appear as
defamatory to others because they possess special knowledge or extra information [eg reading
about someone getting married wouldn’t seem damaging to their reputation unless you knew they
were already married]: Cassidy v. Daily Mirror Newspapers Ltd 1929
(2) Reference to the claimant
The statement must refer to the claimant, i.e. identify him or her, either directly or indirectly. It is
essential that the defendant’s statement is shown to refer to the plaintiff. The defendant need not
have intended the statement to refer to the plaintiff provided that people who know the plaintiff
understand that he was pointed at by the words used.
Fictional name
What is the position where the defendant uses a name for a character who is supposed to be
fictional and a real person with the same name claims to have been defamed? In Hulton & Co v.
Jones, the defendant published an article containing defamatory statements of ‘Artemus Jones’ a
church warden from Peckham. The article was alleged to be fictitious. A barrister named
Artemus Jones from North Wales sued for libel as some of his friends thought that the article
referred to him. The defendants were held liable although they had not intended to defame the
plaintiff.
Same name
What is the position where the statement is intended to refer to one person but another person
with the same name claims that it refers to him: Newstead v. London Express Newspaper Ltd
[1940]. A newspaper report of a trial referred to Harold Newstead, a30-year old Camberwell man
as a bigamist. The plaintiff who had the same name lived in Camberwell and was unmarried
successfully sued for libel. The defendants were held liable for libel in respect of a statement
published even though the claimant was not intended to be the named person in the report.
No name mentioned
In Morgan v. Odhams Press Ltd [1971], a newspaper article alleged that a girl has been
kidnapped by a dog doping gang. No one was mentioned by name in the article except the girl.
At the relevant time the girl had been staying with the plaintiff and he sued for libel and called
six witnesses who thought that the article referred to the plaintiff. The House of Lords held there
need be no key or pointer in the words themselves and that the plaintiff could introduce extrinsic
evidence to show that he was referred to.
Look-a-likes
In O’Shea v. MGN Ltd [2001], strict liability does not apply to a look-a-like picture because it
would be an unjustifiable interference with freedom of expression contrary to Article 10 of
European Convention of Human Rights.
Defamation of a class
If a class of people is defamed, there will only be an action available to individual members of
that class if they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no
particular lawyer could sue him unless there was something to point to the particular individual"
(per Willes J in Eastwood v Holmes (1858).
If the defendant made a reference to a limited group of people, eg the tenants of a particular
building, all will generally be able to sue (Browne v DC Thomson (1912).
This issue was considered by the House of Lords in Knupffer v London Express Newspaper Ltd
[1944]: The defendants published an article which referred to émigré Russian movement and
linked with Fascism. The movement had a membership of about 2,000 and the UK branch of 24.
The plaintiff, a Russian resident in London sued for libel alleging that the article referred to him.
The House of Lords lay down that the crucial points were:
• Were the words published of the plaintiff in the sense that he can be said to be personally
pointed at.
• Normally, where the statement is directed to a class of persons no individual belonging to that
class is entitle to sue.
• The words may be actionable if there is something which points to a particular plaintiff or
plaintiffs.
• If the inference is to a small group then each member of the group will be able to sue eg the
trustees of a trust ie if the words may be said to refer to each member.
Unintentional defamation
At common law it was irrelevant that the defendant did not intend to refer to the claimant.
Section 4 of the Defamation Act 1952 provided a special statutory defence in cases of
'unintentional defamation', by allowing the defamer to make an 'offer of amends' by way of a
suitable correction and apology and may include an agreement to pay compensation and costs.
The defence is now contained in ss2-4 of the Defamation Act 1996, which was an attempt to
modernize the law. The person accepting the offer may not bring or continue defamation
proceedings. If the offer to make amends fails, the fact that the offer was made is a defence and
may also be relied on in mitigation of damages. A publication made 'maliciously' (spitefully, or
with ill-will or recklessness as to whether it was true or false) will destroy the defence of
unintentional defamation.
(3) Publication
The statement must be published, i.e. communicated, to a person other than the claimant. For
example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on
the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel.
However, in Bryanston Finance v De Vries [1975] it was held that where a letter was written to
protect the interests of the business there was a common interest between the employer and
employee, and so a letter dictated to a secretary in the normal course of business was protected
by qualified privilege.
Communication between husband and wife
A statement made to one's own spouse will not be 'published' for the purposes of defamation
(Wennhak v Morgan (1888). Communication between husband and wife is protected as any other
rule "might lead to disastrous results to social life".
Negligent Publication
In Theaker v. Richardson [1962], the defendant and plaintiff were members at a local council.
The defendant wrote a letter which stated that the plaintiff was a lying low down brothel keeping
whore and thief. The letter was sealed in an envelope and put through the plaintiff’s letter box.
The plaintiff’s husband opened and read the letter thinking that it was an election address. The
jury found that the defendant anticipated that someone other than the plaintiff might open and
read the letter and it was probable that the plaintiff’s husband would do so. There had therefore
been a publication and the defendant was liable.
Compare and contrast with the case of Huth v. Huth [1915]: The defendant posted a letter in an
unsealed envelope to the plaintiffs. The plaintiffs’ butler opened the envelope and read the letter.
This was held not to amount to a publication as the butler’s behaviour was not a direct
consequence of sending the letter.
Repetition
Every repetition of defamatory words is a fresh publication and creates a fresh cause of action
against each successive publisher. Thus a libel which is printed will bring liability to the author,
printer and publisher. In the case of Vizetelly v. Mudie’s Select Library Ltd [1900]: the publishers
of a book had asked for its return as it contained defamatory material. The defendants who
operated a circulating library were held liable for allowing people to use the book after they had
received the warning.
The court stated that secondary publishes / distributors would not be liable if they could show:
a. They were innocent of any knowledge of the libel contained in the work in question.
b. There was no reason for them to be aware that the work contained libelous material.
c. They were not negligent in failing to know that the work was libelous.
Defences
1. Section 1 of Defamation Act 1996: Innocent Dissemination
2. Section 2 of Defamation Act 1996: Offer to make amend [failure will create a defence of
innocent defamation]
3. Truth or Justification
4. Fair Comments
5. Privilege
; Section 1 & 2 of Defamation Act 1996: Innocent Dissemination
The defence [Distributors Defence] sometimes known as 'innocent dissemination' is designed to
protect booksellers and distributors of materials, which may contain libelous statements. The law
is now contained in s1 [1] of the Defamation Act 1996. A person has a defence if he shows that
he was not the author, editor or commercial publisher of the statement; he took reasonable care in
relation to its publication; and he did not know, and had no reason to believe, that what he did
caused or contributed to the publication of a defamatory statement (s1(1)). A person shall not be
considered the author, editor or publisher of a statement if he is only the printer, producer,
distributor, or seller of printed material containing the statement, or the broadcaster of a live
programme (s1(3)).
An internet service provider was held not to be the publisher, within the meaning of s1, of
defamatory statements posted on a newsgroup, and therefore was entitled to rely on s1(1)(a).
However, on the facts the claimant had notified the defendants that the posting was defamatory
and requested that they remove it, but they had refused to do so. Therefore, they could not rely on
the defence in s1(1): Godfrey v Demon Internet Ltd [1999].
Novus Actus Interveniens
Can a repetition by a third party amount to novus actus interveniens to break the chain of
causation so that the plaintiff will not be liable? In Slippers v. BBC [1991], the plaintiff sued for
libel in respect of a film which was broadcasted by the defendants. Both the trial judge and the
Court of Appeal refused to strike out the plaintiff’s claim and left it to the jury to decide whether
damages were recoverable in respect of damage occasioned by the various reviews in the national
press. The plaintiff argued that the defendant had invited the press to preview the film. They
knew that the film would be reviewed by the national press and that the people would read the
reviews who would not have seen the film. The defendant argued that they could not be liable for
the repetition which was not authorized by them and which was made by an independent third
party.
Slade LJ stated that the court was prepared to accept that prima facie a court will regard an
unauthorized repetition by an independent third party as a novus actus interveniens but even on
this assumption the held that every case must depend on its own. For this case the matter is left
with the jury.
In the case of McManus v. Beckham [2002]: It was held that the Victoria Beckham should be
held liable for the damage caused by the press reports if she was aware when she made the
statements that there was a significant risk that the “sting” of her statements would be reported in
the press or if a reasonable person in here position would have appreciated that there was such a
risk.
; Truth and public benefit
Only false statements are actionable, so if the statement made about the claimant is true, there
can be no action for defamation. The burden of proof is on the defendant to prove that the
statement made is true, rather than on the claimant to prove that it was false.
Must the whole truth be proven? If a number of imputations are made by the defendant but only
one action is brought by the claimant in respect of them, then, by virtue of s5 of the Defamation
Act 1952, a defence of justification shall not fail by reason only that the truth of every charge is
not proved if the words not proved to be true do not materially injure the claimant's reputation,
having regard to the truth of the remaining charges.
However, in the case of Cruise v. Express Newspaper [1999] where the plaintiffs complained not
of the whole article but only one of the things in it, the defendant is not allowed on pleas of
justification or fair comments in relation to the other things. Therefore the defence under Section
5 Defamation Act 1952 could be abused.
Wakely v. Cooke and Healey: The defendant called the plaintiff a ‘libelous journalist’. In
evidence, the defendant proved that the plaintiff had once been successfully sued for libel. The
defence of justification failed as the court took the view that in context the words meant that the
plaintiff habitually libeled people. The defendant had failed to justify this meaning.
The Rehabilitation of Offenders Act 1974 provides that certain criminal convictions, depending
upon their seriousness, are to become 'spent' after certain periods of time have elapsed, and
treated as if they had never happened. Section 8 provides that in defamation actions, which are
based on allegations that the claimant has committed offences which would otherwise be 'spent',
justification can be used as a defence except where the publication was made with malice (ie,
spitefully, or with ill-will or recklessness as to whether it was true or false).
; Fair comments on a matter of public interest
The defence of fair comment has certain requirements:
1. It must be a matter of public interest: London Artists Ltd v. Littler [1969]
2. The comment must be an opinion based on true facts: Kemsley v. Foot [1952]
3. The comment must be fair: Merivale v. Carson [1888]
4. The comment must not be malicious: Thomas v. Bradbury, Agnew & Co Ltd [1906]
Telnikoff v. Matusevitch [1991] changed the law and took a different approach:
The Court of Appeal stated that the test of fairness is an objective one and stated that the
appropriate test is not whether the comment is fair in the ordinary sense of the word but whether
the words used could fairly be regarded as a comment. The Court of Appeal also rejected the
plaintiff’s argument that the honesty of belief is an essential element of the defence of fair
comment and that it is for the defendant to establish his own honesty. They held that once the
defendant shows in the objective sense that the statement can fairly be stated to be a comment the
court will presume that his statement of opinion is honest unless that plaintiff pleads and prove
express malice.
The defence of fair comment is frequently relied upon by the press, as it is designed to protect
statements of opinion on matters of public concern. Lord Esher, in Merivale v Carson (1887),
stated that the test was: "Would any fair man, however prejudiced he may be, however
exaggerated or obstinate his views, have said that which this criticism has said of the work which
is criticized?"
However, Lord Porter, in Turner v MGM Pictures [1950], said that he would adopt this test, but
substitute 'honest' for 'fair' in order to avoid the suggestion that the comment must be reasonable.
Lord Nicholls in Reynolds v Times Newspapers [1999]:
This case was brought by the former Irish Prime Minister, Albert Reynolds following his
resignation on the collapse of the coalition government in 1994. An article in the Sunday Times
alleged that he had lied to the Irish Parliament and to his coalition colleagues. The story was of
interest to a British readership as Reynolds had been one of the chief architects of the Northern
Ireland peace agreement. The article proved to be factually false even though it had been
honestly made. The main issue before the House of Lords was whether the newspaper was
entitled to rely on the defence of qualified privilege. Counsel for Times Newspapers invited the
House to consider developing a new category of qualified privilege to cover the publication of
political information, in line with the approach adopted in Australia. The House of Lords held
that the media do not have an unfettered right to publish what they believed to be in the public
interest.
The defence only applies to comments made on matters of public interest, eg comments on works
of literature, music, art, plays, radio and television; and also the activities of public figures.
A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was
true or false) will destroy the defence of fair comment.
Where there are imputations partly based on fact and partly expressions of opinion, the defence
of fair comment will not fail merely because the truth of every allegation of fact is not proved if
the expression of opinion is fair comment having regard to such of the facts alleged or referred to
in the words complained of as are proved (s6 of the Defamation Act 1952).
Privilege
(a) Absolute
There are certain occasions on which the law regards freedom of speech as essential, and
provides a defence of absolute privilege, which can never be defeated, no matter how false or
malicious the statements may be. The following communications are 'absolutely privileged' and
protected from defamation proceedings:
• Statements made in either House of Parliament. However, by s13 of the Defamation Act 1996,
this privilege can be waived.
• Parliamentary papers of an official nature, ie, papers, report and proceedings that Parliament
orders to be published (s1 of the Parliamentary Papers Act 1840). Extracts from parliamentary
papers are covered by qualified privilege (s3).
• Statements made in the course of judicial proceedings or quasi-judicial proceedings: Judicial
Privilege
• Fair, accurate and contemporaneous reports of public judicial proceedings before any court in
the UK (s3 of the Law of Libel Amendment Act 1888). The same privilege was extended to radio
and television broadcasts of judicial proceedings in similar circumstances by s9 (2) of the
Defamation Act 1952.
• Communications between lawyers and their clients.
• Statements made by officers of state to one another in the course of their official duty
(Chatterton v Secretary of State for India [1895].
(b) Qualified
A statement which is made in the performance of a duty will attract qualified privilege provided
that the person making the statement has a legal, moral or social duty to make the statement and
the person receiving it has an interest in do so: Watt v. Longsdon [1930]. It was held that the
publication to the directors was covered by qualified privilege but the publication to the
plaintiff’s wife was not as the defendant had no duty to make the communication.
Qualified privilege operates only to protect statements, which are made without malice (ie,
spitefully, or with ill-will or recklessness as to whether it was true or false). The judge must
decide whether the situation is covered by qualified privilege. If so the jury must then decide
whether the defendant acted in good faith or whether there was malice.
In the case of Spring v. Guardian Assurance the plaintiff sued on the tort of negligence instead of
the tort of defamation.
The following communications will be protected by 'qualified privilege':
• Statements made in pursuance of a legal, moral or social duty, but only if the party making the
statement had an interest in communicating it and the recipient had an interest in receiving it.
• Statements made in protection of an interest, eg public interests or the defendant's own interests
in property, business or reputation.
• Fair and accurate reports of parliamentary proceedings.
• Fair and accurate reports of public judicial proceedings in the UK, eg when the report is not
published contemporaneously with the proceedings.
• Statements privileged by s15 of the Defamation Act 1996, which applies to statements made in
newspapers and radio and television broadcasts.
There are two categories:
• Statements having qualified privileged without explanation or contradiction: see Part I of
Schedule 1 to the Act.
• Statements having qualified privilege subject to explanation or contradiction: see Part II of
Schedule 1 to the Act.
A case on qualified privilege specifically mentioned in the Ilex Part II syllabus is: Reynolds v
Times Newspapers [1999]. The Court of Appeal held that the qualified privilege could be
available to a newspaper in respect of a defamatory and factually false publication which was
honestly made but the newspaper would have to satisfy a three-stage test:
1. There must be a legal, moral or social duty to the general public to publish the material in
question [the duty’s test];
2. It has to be established that the general public had a corresponding interest in receiving the
information [the interest test] and
3. The defendant had to establish that the nature, status and source of the material and the
circumstances of its publication were such as to warrant the protection of privilege without
malice [the circumstantial test].
The House of Lords was unanimous that there should not be a generic qualified privilege defence
for political information notwithstanding arguments about the importance of the freedom of the
press to the proper functioning of a democratic society and the primacy to be accorded to the
freedom of expression under Article 10 of European Convention of Human Rights.
Their Lordships held that the circumstantial test adopted by the Court of Appeal should not apply
as matter of law. The standard test for qualified privilege of whether there was a duty to
disseminate the information and an interest in receiving it should continue to apply.
This defence was recently tested in: Loutchansky v Times Newspapers (QBD, 27 April 2001),
the Court of Appeal considered that the duty / interest test established in Reynolds constituted a
‘striking departure’ from the traditional approach to the qualified privilege and although built
upon an orthodox foundation, is in reality sui generis.
The critical question in assessing whether Reynolds privilege applies would seem to be what
constitute responsible journalism? In the case of Grobbelaar v. News Group Newspaper Ltd
[2001], the Court of Appeal held that the defendants were not entitled to rely on qualified
privilege for their allegations that a famous footballer had accepted bribes to fix matches. The
newspaper had prejudged the claimants guilt and had taken upon itself ‘the role of the police,
prosecuting authority, judge and jury, Simon Brown L C commented that if newspapers choose to
publish exposes of this character unambiguously asserting the criminal guilt of those they
investigate they must do so at their own financial risk.
In the case of Bonnick v. Morris [2002], according to the Privy Council the qualified privilege
was tested on the following grounds:
• Whether the subject matter was of public interest and;
• If yes, was the qualified privilege available but
• Was professional journalism or ‘responsible journalism’ practiced?
Remedies
1)remedy of damages which is a matter for the jury, subject to a power in the Court of Appeal to
set aside the award on the ground that it was in all the circumstances unreasonable and excessive,
the nature of defamation is such that an injunction is also a possible remedy.
2) remedy of injuction
If a potential libel eg in a book shortly to be published or a series of newspaper articles comes to
the plaintiff’s attention in time, he may apply for an injunction preventing publication either
pending the trial of the issue or after trial, in addition to any damages awarded.
Norsurianna Teh Binti Abdullah
October 2003
Submitted by annateh on Saturday, November 08, 2003
